13 Cal. 242, Forbes v. Scannell
Judge | JUDGES: Baldwin, J. delivered the opinion of the Court. Field, J. concurring. |
Parties | FORBES et al. v. SCANNELL |
Citation | 13 Cal. 242 |
Docket Number | . |
Court | California Supreme Court |
Date | 01 April 1859 |
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Appeal from the Fourth District.
The main facts are stated in the opinion of the Court, but it is deemed best to insert those findings of the Court below, not stated:
1. That on the 8th or 10th day of March, a. d. 1856, the commercial house of Nye Brothers & Co., then and before that time doing business in Canton, China, had returned to them by the European Mail which arrived at Canton on one of those days, protested bills to the amount of thirty thousand pounds, (30,000,) drawn by the said house at Canton upon Frederick Huth & Company, Bankers, at London, G. B., and now the contesting creditors in this case.
2. That said assignment was executed by the said Gideon Nye, before the American Consul, at the American Consulate, at Canton, on the day it bears date, and delivered to the assignees.
3. That the James Russell & Co. mentioned in said assignment, constituted, on the 11th of March, 1856, an American commercial house of long standing, good character, and at the date of the assignment, and long before, of unquestionable solvency. Said house being composed of Paul S. Forbes, Robert S. Sturges, Edward Cunningham, David N. Spooner, George Griswold Gray, Charles N. Spooner, and Frederick Reiche, and that James Purdon & Company, mentioned in said assignment, also constituted, on the 11th day of March, a. d. 1856, an American commercial house, established at Canton, of good standing, and at the time of, and long before, the assignment, of unquestionable solvency, composed of the said James Purdon and his brother, John C. Purdon, and that said parties, composing said firms, are the plaintiffs in this case.
4. That said assignees are competent and suitable persons to take charge of said assigned property.
5. That at the time of the said assignment, the house of Nye Brothers & Co. was composed of the said Gideon Nye, Jr., the sole managing partner, residing at Canton, China; of Clement D. Nye, residing at Shanghae, China; and of Charles Keating Tuckerman, a salaried partner, not participating in the profits or losses of the partnership.
6. That said Tuckerman also resided at Canton, but at the date of said assignment was on a voyage from Canton to Calcutta, via Manila and Singapore, having left Canton on said voyage in the month of January preceding.
7. That at the date of said assignment the said Clement D. Nye was at Shanghae, between which place and Canton it required ten or fifteen days to make the trip.
8. That the English steamer bringing the European mails, with the protested bills, as aforesaid, at Canton, on the 8th or 10th of March, a. d. 1856, left Canton on the 12th with the return correspondence; and that the said Gideon Nye, Jr., between the time of the arrival and the departure of the said mail to and from Canton, had no opportunity of consulting with the said Clement D. Nye, or the said Tuckerman, respecting the propriety of said assignment.
9. That before the return of said protested bills the house of Nye Brothers & Co. had good credit in China and abroad, and that the return of said bills was the immediate emergency for making said assignment; and that said emergency did, in fact, exist at the time of making of the assignment.
10. That the assignees, at the date of the assignment, resided in China, except Paul S. Forbes, who resided in Boston; and all the assignees were in Canton at the date of the assignment, except Edward Cunningham and Geo. G. Gray, who were at Shanghae, where they resided, and Charles N. Spooner, who was at Chow-Fow, where he resided, about midway between Canton and Shanghae.
11. That the assignees accepted the assignment, took possession of the property, real and personal, of Nye Brothers & Co., under the assignment, made sales of some of the said property, took the general management of the former business of Nye Brothers & Co., relating to consignments on hand and due, issued circulars to the creditors and correspondents of said house, made statements to said creditors concerning the liabilities and assets of said firm, employed the said Gideon Nye, Jr., and others, to assist in the administration of the assignment, and made the said Nye a reasonable allowance for his services.
12. That schedules of the debts and assets of the said Nye Brothers & Co. were made out by said Gideon Nye, in pursuance of the reservation in said assignment of the 11th of March, and delivered to the assignees a short time after the execution and delivery of said assignment of the 11th of March.
13. That prior to said assignment, the said Nye Brothers & Co. had an established credit upon the house of Frederick Huth & Company, to the amount of about thirty thousand pounds sterling, and that since the assignment the said Gideon Nye and some of the creditors of Nye Brothers & Co. contend that the terms of that credit were violated by Frederick Huth & Co. by their protest of said bills.
14. That the said assignment was executed in good faith by the said Gideon Nye in behalf of Nye Brothers & Co., for the benefit of all their creditors, and the same is free from any fraud in fact on the part of the said Nye Brothers & Co., or on the part of the said Gideon Nye, or on the part of the said assignees, in the acceptance and administration of the same, and that the copartners of said Gideon Nye did not and have not dissented or objected to said assignment.
15. That the teas in question constituted a part of the assets of the firm of Nye Brothers & Co. at the time of the assignment, and were actually delivered to said assignees subsequent thereto, who took possession of the same and shipped them to San Francisco for a market, consigned to Morgan, Hathaway & Co., for sale on their account in the regular course of their administration under the assignment, with instructions to remit the proceeds thereof to them, the said assignees.
16. The said teas being the product of China, where the assignment was executed and accepted, it was a proper act on the part of the assignees to ship them to San Francisco for a market--under the expectation of securing a higher cash price--and an immediate return of the proceeds to them--and that said transaction on the part of the assignees was and is entirely free from fraud.
17. That the suit upon which the execution was issued in this case by Frederick Huth & Co., against Nye Brothers & Co., was instituted on the 15th February, 1856, by attachment.
18. That there were several meetings of the Chinese creditors of Nye Brothers & Co., representing about two-thirds of the entire indebtedness of the house, soon after the assignment, before the American Consul in Canton, at which the assignees attended, and that said creditors assented to said assignment and co-operated with the assignees in carrying it out, etc.
19. That at said meeting the said creditors made a reasonable allowance of furniture to Mrs. Gideon Nye, for the use of the family, to which the assignees assented, and that in assenting thereto the assignees were not guilty of fraud.
20. That the entire foreign population residing in Canton at the date of the assignment, including missionaries, did not exceed three hundred, and that among this foreign population there were not more than thirty or forty American residents.
21. That this population resided together at the place called the Foreign Factories, a place of limited extent, and devoted to the transaction of foreign business.
22. That there were no Americans residing in Canton at the date of the assignment, except those connected with the commercial houses, and no suitable person residing at the Factories to act as assignee for Nye Brothers & Co., except those connected with a commercial house.
23. That it is customary for the foreign residents in Canton to execute legal documents and transact legal business at their respective consulates.
24. That the foreign residents of Canton, within the isolated place called the Factories, outside the wall of Canton, have no access to the Chinese Courts for the purpose of litigation, as established by the laws peculiar to that empire.
25. That the first mentioned assignment has been adjudicated upon in a controversy between the American citizens by the Consular Tribunal authorized by Act of Congress, and declared valid.
26. That there is no evidence tending to show that such an assignment is contrary to the positive law of China, or the policy of that empire, or contrary to any usage or custom of the foreign commercial population resident in China.
27. That the value of said teas is fifty thousand dollars.
From the foregoing facts, conclusions of law are by the Court:
1. That the assignment of the 11th of March, 1856, is valid, and vested in the assignees the title to the teas; was acquiesced in by the copartners of Gideon Nye, Jr., and is binding upon the firm.
2. That the assignees are entitled to the teas in question, as their property, to be disposed of by them, in the...
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Treaty-making and the nation: the historical foundations of the nationalist conception of the treaty power.
...decision, too, was not to last. A short time later, the Court once again reversed direction, overruling Siemssen. See Forbes v. Scannell, 13 Cal. 242, 283 (1859) (reviving Gerke). For an elaborate opinion affirming a broadly nationalist view of the treaty power, see Cornet v. Winton's, 10 T......